CITATION: R. v. M.C., 2026 ONSC 4097
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
M.C.
Counsel: Thomas Surmanski, for the Crown Sareena Sanghera, for the accused, M.C.
HEARD: April 30 and May 4, 2026
REASONS FOR SENTENCE
(Subject to a publication ban that applies to any information that might identify the complainant, pursuant to section 486.4 of the Criminal Code)
VERMETTE J.
1On January 14, 2026, M.C. was found guilty of sexual assault and choking by a jury.
2M.C. was originally charged with four offences. While, as stated above, he was found guilty of sexual assault (count 4) and choking (count 1), the jury found him not guilty with respect to two counts of uttering a threat to cause death (counts 2 and 3).
3On April 30 and May 4, 2026, I heard sentencing submissions and reserved judgment. These are my reasons for sentence.
I. FACTUAL BACKGROUND
1. Circumstances of the offences
4Following a trial with a jury, the sentencing judge must do their best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. The sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand. In doing so, the sentencing judge: (a) is bound by the express and implied factual implications of the jury’s verdict; and (b) must accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty, and must not accept as fact any evidence consistent only with a verdict rejected by the jury. See R. v. Ferguson, 2008 SCC 6 at paras. 16-17 (“Ferguson”).
5When the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury. It would be speculative and artificial to attempt to do so because jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: see Ferguson at para. 22. Rather than attempt to follow the logical process of the jury, the sentencing judge should come to their own independent determination of the relevant facts. In doing so, the sentencing judge may find any other relevant fact that was disclosed by evidence at the trial. To rely upon an aggravating fact, the sentencing judge must be convinced of the existence of that fact beyond a reasonable doubt. To rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities. See Ferguson at para. 18 and section 724 of the Criminal Code.
6At trial, the jury heard the evidence of only one witness, S.M.
7The following are some of the relevant facts. To the extent that any of the facts are aggravating in nature, I have kept in mind the applicable standard of proof beyond a reasonable doubt in finding them as facts.
8During the relevant time period, S.M. was living with her parents in Toronto.
9S.M. met M.C. for the first time on Instagram in December 2020. She was 16 years old at the time and M.C. was 19 years old. They began a formal relationship in February 2021. S.M. broke up with M.C. in December 2021. They got back together in late January 2022 or at the beginning of February 2022. S.M. broke up again with M.C. in February 2022. After this breakup, they never got back into a relationship again. They were friends.
10Around June or July 2021, S.M. had a family barbecue at her house. Her parents, sisters, niece and grandmother were there, as well as M.C. This was the second or third time that M.C. came to S.M.’s house. S.M. and M.C. spent some time with S.M.’s family in the living room. At some point, S.M. and M.C. went upstairs to S.M.’s room to go hang out.
11In the bedroom S.M. and M.C. were sitting on S.M.’s bed and having a normal conversation. S.M.’s family was downstairs. Out of nowhere, M.C. turned and grabbed S.M.’s neck, first with his right hand and then with both of his hands. He applied pressure and started choking her. S.M. was surprised. She tried to grab M.C.’s hands and remove them from her, but she was not able to do so. S.M. could not breathe well. The choking lasted for less than one minute. It ended when M.C. snapped out of it. M.C. left shortly thereafter.
12S.M. became pregnant with M.C.’s child when she was 17 years old and M.C. was 19 years old. She found out that she was pregnant in December 2021. S.M. testified that in the following months, M.C. was inconsistent about whether he wanted the baby or not.
13S.M. turned 18 in early March 2022. On the day of her birthday, she exchanged WhatsApp messages with M.C. They discussed him coming over to her house to celebrate her birthday.
14In the end, M.C. came to S.M.’s house at around 12:40 a.m. They went to the living room and sat on the couch. At first, they talked and then they put on a movie to watch. At some point, M.C. and S.M. started making out. They were making out for about five minutes. M.C. subsequently started touching S.M.’s body and moving on top of her.
15After M.C. fully came on top of S.M., while they were making out, M.C. lifted S.M.’s dress up to her hip area and then pulled down her underwear. S.M. told M.C. to stop a couple of times, including when he was pulling off her underwear. She said: “Can you get off of me? Can you stop?” M.C. did not say anything in response. He pulled down his pants and boxers, and he then vaginally penetrated S.M. S.M. asked M.C. to stop during the intercourse and she continuously tried to push him off of her with her two hands on his chest during the penetration, but she was not successful. M.C. continued to have sex with her and ultimately ejaculated in her. S.M. stated that she did not agree to have sex with M.C. that night.
16S.M. called the police later that morning.
17M.C. was arrested on March 7, 2022, and he spent two days in pre-sentence custody before being released on bail.
18S.M. gave birth to her son in August 2022. He is now three years old. There is no family court order in place with respect to his custody. S.M. and M.C. met up after S.M. had her child.
2. Pre-sentence report
19A pre-sentence report (“PSR”) was prepared in this case. The following information is set out in the PSR.
20M.C. is 24 years old. He was born in Morocco.
21M.C. was primarily raised by his mother. His father passed away when he was three years old. Growing up, M.C. had a positive and supportive relationship with his mother. His mother supported him and his two brothers, and they engaged in “normal” family activities. Physical discipline was used in the home – M.C. was hit or spanked when he was in trouble.
22When M.C. was approximately 14 years old, his older brother was killed in Morocco because of gang-related violence.
23In 2017, M.C. immigrated to Canada under refugee status with his younger brother. Upon immigrating to Canada, M.C. resided in Scarborough with his aunt and uncle for two years. One day, after M.C.’s younger brother attended school with visible injuries, child protective services were notified and became involved due to concerns of abuse within the home.
24M.C. and his brother were placed in foster care. M.C. described foster care as a positive experience and an improvement from his previous living situation. He remained in foster care until the age of 19, at which time he transitioned out of care along with his brother. M.C. has since been residing in adult housing.
25M.C. completed his elementary education in Morocco and his secondary school education in Brampton. He stated that he did not experience difficulties with teachers or peers. He reported having good academic grades. However, he believes that he may have a learning disability. He does not recall being formally assessed or diagnosed while in school. M.C. has not pursued post-secondary education, which he attributes to his current charges.
26M.C. reported that upon arriving in Canada, he obtained employment with a unionized waterproofing company while residing in Scarborough. He worked there for approximately nine months. For the past four years, M.C. has been employed with a tree cutting business in Brampton. He enjoys this work and has positive relationships with his coworkers and supervisors. Prior to obtaining his tree cutting position, M.C. did seasonal interlocking work for one summer.
27M.C.’s younger brother is approximately 21 years old. M.C. previously had regular contact with him, but contact has ceased for over a year. M.C. attributes this to his current charges.
28M.C. has no current contact with his aunt and uncle. He has lost contact with his mother since the involvement of child protective services because his only communications with his mother were facilitated through his aunt and uncle. His mother has not attempted to re-establish contact with him.
29Because of frequent moves throughout his youth, M.C. has lost contact with many previous friends. He currently maintains approximately five close friendships. He is presently single. M.C. spends his leisure time with friends, attending the gym and socializing in the community. In terms of future goals, he reported an interest in attending college to pursue a skilled trade. He expressed an interest in boiler welding, and he noted that he has friends working in this field.
30M.C. denied any known diagnoses of mental health conditions within his family. He does not consume alcohol and he has never used or experimented with illicit drugs. He uses marijuana on weekends.
31M.C. told the author of the PSR that he met the victim, S.M., when he was approximately 19 years old and she was approximately 17 years old. They met through social media and were involved in a relationship for approximately two years. M.C. described the relationship as initially positive, but he reported that difficulties arose over time, which he attributed to concerns regarding infidelity on the part of the victim.
32M.C. denies the charges against him. He believes that the charges are unfair and do not reflect the events as he recalls them. He stated that the interaction was consensual and that an argument later occurred via text messaging. Derogatory comments were made toward him regarding his family background.
33M.C. and S.M. share a three-year-old child.
34S.M. reported to the author of the PSR that the events have negatively affected her mental health. The matter has made her feel very anxious, and she currently attends therapy on a weekly basis to address these concerns. The incident affected her ability to complete her education as originally planned. It took her an additional two tears to complete high school and she began college later than anticipated.
3. Victim impact statement
35S.M. read her victim impact statement in court.
36In her statement, S.M. states that the incident has had a lasting impact on her and has changed how she lives and how she views life. Her birthday, which used to be a special day for her, has become a painful reminder of what happened. Since the incident, she no longer celebrates her birthday at home.
37S.M. says that her home used to be a place where she felt safe and protected, but now it is a place that reminds her of how she was hurt. She no longer feels secure there.
38S.M. states that because of what she went through, she struggled with her mental health. Her pregnancy was extremely stressful and mentally exhausting. She began experiencing severe depression, anxiety and panic attacks, and she had to start therapy. S.M. is still attending therapy to this day as she continues to cope with the impact of what happened.
39S.M. had to take time off from work and school. She was unable to finish school with her peers, which has affected her goals and plans for the future. She also felt isolated. S.M. says that to this day, she finds it difficult to trust anyone. The incident has impacted her ability to have a normal relationship with anyone.
40S.M. states that her son is the most important part of her life and the one positive thing that came from the situation. He brings light into her life during difficult times, and is her motivation to keep going.
4. Letters and documents filed by the defence
41The defence filed a number of letters and documents. They are discussed below.
a. Letter from the Refugee Law Office
42The defence filed a letter from a staff lawyer at the Refugee Law Office of Legal Aid Ontario. This office represents M.C. in his immigration matters. The following information is contained in the letter.
43M.C. is a citizen of Morocco and no other country. He came to Canada in August 2017 and made a refugee claim. His claim was initially denied, but was reopened in 2020. His claim remains pending before the Refugee Protection Division, although it was suspended in March 2022 due to his criminal charges.
44Sexual assault and choking are considered to be “serious criminality” under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). Because of his convictions, and regardless of the sentence imposed, M.C.’s refugee claim will be terminated. Prior to being removed by the Canada Border Services Agency, M.C. will have an opportunity to apply for a Pre-Removal Risk Assessment (“PRRA”). If the application is approved, he would be allowed to stay in Canada. However, due to his convictions, he would only receive a stay of removal, not protected person status.
45The letter states as follows:
Although general acceptance of PRRAs is very low, his chances would improve significantly if he is sentence [sic] to no term of imprisonment, or if his term of imprisonment is less than 2 years. If his sentence is two years or more, then his PRRA will only be assessed under section 97 of the IRPA, namely whether he faces a risk to his life or a risk of cruel and unusual treatment or punishment in Morocco, which is a very high standard. If his sentence is less than two years, then his PRRA will also be assessed under section 96 of the IRPA, namely whether he faces a risk of persecution, which is a lower standard. This is particularly important in [M.C.’s] case, as a family member was found to be at risk of persecution in Morocco based on the same facts that [M.C.] is raising in his refugee claim.
If [M.C.] is found to be at risk, his PRRA will then go to a second stage, where the decision-maker will balance the risk that he faces in Morocco against any risk that he poses to the public in Canada. Jurisprudence gives the decision-maker broad discretion to consider a wide range of factors in assessing ‘danger to the public’. Among other factors, the decision-maker will here look at the sentence that [M.C.] receives for his convictions. A sentence of either no term of imprisonment (such as a conditional sentence), or a sentence of less than six months would be beneficial, as the decision-maker would be less likely to conclude that [M.C.] poses a present and future danger to the public in Canada.
Finally, within the PRRA risk balancing process the Minister will likely rely on materials from [M.C.’s] criminal proceedings. […] [Emphasis in the original.]
b. Psychological assessment report
46A psychological assessment report was prepared in 2021 by a clinical psychologist when M.C. was 19 years old. The report states that M.C.’s general cognitive ability is within the extremely low range of intellectual functioning, and that his overall thinking and reasoning abilities exceed those of only approximately 0.3% of individuals of his age. His verbal comprehension and perceptual reasoning abilities are also in the extremely low range. M.C.’s ability to sustain attention, concentrate and exert mental control is very limited. The speed at which he is able to process simple or routine visual material without making errors is very low when compared to his peers. Further, his level of adaptive functioning is very weak and is at the first percentile for persons of his age.
47Based on the fact that the results consistently indicated that M.C. functions at or below the first percentile, M.C. was diagnosed with an intellectual disability.
48The report states that because of his intellectual disability, M.C. will require ongoing support in a number of areas of his life, including housing, education, finance, and assistance with health and safety issues.
c. Other letters and documents
49The defence filed a letter from Cota dated May 1, 2026. The letter states that M.C. has been a client of Cota’s Transitional Aged Youth program since September 1, 2022. This program supports adults with developmental disabilities who have transitioned out of the Toronto-based children’s aid societies. Cota ensures that its clients receive high-quality care within private residential settings while coordinating their eventual transition into permanent adult developmental services. There is no time limit to Cota’s case management services. Support continues until a successful permanent transition is achieved. M.C.’s case manager conducts mandatory monthly site visits to provide ongoing support.
50The defence also filed a letter from Milan Care Services. Milan Care Services is dedicated to providing compassionate and personalized residential support for individuals with various developmental disabilities. Milan Care Services provides one-on-one support that assists M.C. with his daily needs throughout the day, and provides him with guidance to allow him to live independently and achieve his maximum potential. Staff from Milan Care Services are present at M.C.’s residence daily throughout the day, supervising his routine and ensuring that he is safe and does not pose a risk to himself or others. Staff also assists M.C. with essential activities such as grocery shopping and taking M.C. to appointments. Milan Care Services has created an individual support plan that assists M.C. with emotional regulation in moments where he is in crisis, and provides him with guidance on how to interact socially and appropriately with people. There is a closed-circuit television system at M.C.’s residence that operates at all times. It allows staff to ensure that M.C. is safe and to know when he is going out into the community.
51Finally, the defence filed an Individual Support Plan of Carpe Diem dated September 1, 2023, which is signed by a number of people, including M.C. and a Cota case manager.
II. POSITIONS OF THE PARTIES
1. Position of the Crown
52The Crown’s position is that a just and appropriate sentence in this case is a 4.5-year custodial sentence minus a credit of three days for pre-sentence custody. The Crown submits that the sentence should be apportioned as follows: four years for sexual assault, and six months consecutive for choking, which was an entirely separate event. The Crown also requests the following ancillary orders:
a. a DNA order pursuant to section 487.051(1) of the Criminal Code;
b. a non-communication order with S.M. during the custodial period of the sentence pursuant to section 743.21(1) of the Criminal Code, subject to any family court order;
c. a weapons prohibition order for life pursuant to section 109 of the Criminal Code; and
d. an order that M.C.’s name be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for 20 years pursuant to section 490.012(3) of the Criminal Code.
53The Crown states that the fact that M.C. does not have a criminal record is a mitigating factor. The Crown argues that the following are aggravating factors:
a. The convictions fall under the umbrella of intimate partner violence and are very troubling when taken together. The Crown relies on subsection 718.2(a)(ii) of the Criminal Code.
b. S.M.’s vulnerability was aggravated by her pregnancy at the time of the sexual assault.
c. The sexual assault was prolonged and took place over numerous protests and requests to stop by S.M.
d. No condom was used.
e. M.C. attempted to dissuade S.M. from testifying on approximately 50 occasions before the trial.
54The Crown points out that the psychological and emotional harm suffered by S.M. is evident from her victim impact statement.
55The Crown notes that M.C. denies the allegations. The Crown states that a lack of remorse is not an aggravating factor, but it is not mitigating.
56The Crown submits that the primary sentencing objectives in this case are denunciation and deterrence. According to the Crown, a period of substantial custody is warranted in this case to reflect the principles of denunciation and deterrence, despite the absence of criminal antecedents. The Crown relies on the decision of the Court of Appeal in R. v. A.J.K., 2022 ONCA 487 (“A.J.K.”) which sets out a sentencing range of three to five years in the penitentiary for penetrative sexual assaults.
57The Crown highlights the strict and repetitive message delivered by the Court of Appeal regarding charges of this nature and the sentencing range of three to five years that applies absent highly mitigating factors. The Crown relies on the decision of the Court of Appeal in R. v. S.W., 2024 ONCA 173 (“S.W.”) and argues that an absence of a criminal record, good and stable employment, remorse and children are not exceptional circumstances that would justify a conditional sentence order.
58The Crown argues that this case is factually similar to A.J.K. because there was an effort to overcome resistance of an intimate partner during a penetrative sexual assault. The Crown points out that S.M. testified that she tried to push M.C. off repeatedly.
59The Crown distinguishes the cases relied upon by the defence and points out that they were not penetrative sexual assault cases, they were decided before A.J.K., the victim was not an intimate partner, they involved a guilty plea, or they did not have the aggravating factors that are present in this case. The Crown also notes that these cases do not impose a sentence as low as the one sought by the defence. The Crown submits that a conditional sentence order would constitute a demonstrably unfit sentence in this case that is not proportional to the offences before the Court.
60With respect to M.C.’s difficult personal history, the Crown argues that there needs to be a “bridge” between this history and M.C’s moral blameworthiness. Similarly, with respect to M.C.’s intellectual disability, the Crown submits that the psychological assessment report does not indicate that M.C.’s intellectual disability operated in such a way as to reduce his moral blameworthiness and render him unaware of the potential consequences of the actions and decisions that he took.
61The Crown states that disproportionate sentences cannot be imposed to avoid collateral immigration consequences which flow from other legislation.
2. Position of the defence
62The defence’s position is that an appropriate sentence in this case is a conditional sentence of twelve months, with a house arrest condition, followed by a one-year probation.
63The defence submits that the proposed sentence is fit and proportionate due to the unique constellation of mitigating factors in this case, including M.C.’s youth, the fact that he does not have a criminal record, his traumatic background, his stable employment, and the profound immigration consequences that he faces. According to the defence, these factors collectively support a sentence to be served in the community.
64The defence acknowledges that in the context of crimes against an intimate partner, rehabilitation is not as important an objective as denunciation. The defence also acknowledges the statutory aggravating factor in subsection 718.2(a)(ii) of the Criminal Code. However, the defence submits that there are highly mitigating factors in this case that justify a departure from the sentencing range of three to five years for sexual assault.
65The defence notes that M.C. was 19 and 20 years old at the time of the offences, and that he remains a youthful offender. The defence states that M.C. had a profoundly difficult early life, which is documented in the PSR. The defence argues that M.C.’s difficult personal history constitutes a meaningful mitigating factor, and that it is part of the context that needs to be considered when assessing his moral culpability. The defence submits that M.C.’s early exposure to instability and traumatic background bear directly on his moral blameworthiness.
66The defence states that M.C. has been on bail since March 2022, i.e., for more than four years. The defence points out that M.C. does not have any outstanding charges or any new allegations, and he has a good record of compliance. The defence notes that this case is M.C.’s first involvement with the criminal justice system and there is no pattern of abuse of a partner.
67The defence submits that M.C. has significant roots in the community and a solid work record. The defence states that although M.C. is not in contact with his family, he has significant help in the community. M.C. benefits from the support of Cota workers and his personal support worker who are in contact with him every day.
68The defence notes that M.C. has stable employment and pro-social orientation, and there are no substance abuse concerns.
69The defence states that M.C. and S.M. share a three-year old child together. According to the defence, this is a relevant factor to consider in relation to the rehabilitative path forward and the collateral consequences of incarceration on M.C. and his child, especially given the risk that M.C. be removed from Canada if a sentence of incarceration is imposed.
70The defence points out that M.C. does not presently have a family court order, but that he would like to have one in place after his sentencing is completed so that he can regularly visit his child. The defence states that M.C. has been giving monthly payments of approximately $700 to S.M. for their child.
71The defence submits that M.C. faces severe immigration consequences as a result of his convictions and they should be treated as a significant mitigating factor in determining the appropriate form and length of his sentence. The defence notes that one of M.C.’s family members has already been found to face a risk of persecution in Morocco based on the same factual circumstances that underlie M.C.’s refugee claim. The defence argues that a sentence of less than two years would preserve M.C.’s ability to have his PRRA considered under the standard of fear of persecution (under section 96 of the IRPA) instead of risk to his life or risk of cruel and unusual punishment (under section 97 of the IRPA), and his prospects of success would be greater. According to the defence, the requested sentence would be proportionate to the offence, denounce and deter both M.C. and the public, and avoid the disproportionate collateral immigration consequences of M.C.’s removal from Canada and the foreclosure of his ability to pursue a PRRA under section 96 of the IRPA. The defence states that both M.C.’s life and his child’s life would be affected by these consequences.
72The defence argues that a conditional sentence order is legally available in this case. The defence states that such a sentence would not endanger the safety of the community and would be consistent with the principles of sentencing. The defence notes that the PSR identifies meaningful protective factors, and that M.C. has not posed a risk to the safety of the community or the victim while he was on bail. The defence submits that a conditional sentence order with a full house arrest condition is not a lenient outcome, constitutes a meaningful restriction on M.C.’s liberty and carries real punitive weight. The defence points out that M.C. has people who are able to watch him in the community. The defence expresses the view that rehabilitation is an achievable goal in this case, and that M.C. and society would be better off if M.C. was in the community, getting the support that he needs.
73The defence refers to the 2021 psychological assessment report in which M.C. is diagnosed with an intellectual disability. The defence submits that the support system that M.C. has helps him out with respect to rehabilitation. The defence argues that if M.C. is incarcerated, these supports will not be in place, and it will be almost like a regression for all the time and effort that M.C. has put into bettering himself.
III. DISCUSSION
1. Relevant legal principles
a. General principles
74The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society: see section 718 of the Criminal Code. The main principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence and rehabilitation. However, those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The search for a just sanction that reflects a proper blending of the objectives of sentencing is guided by the principle of proportionality. See R. v. Morris, 2021 ONCA 680 at paras. 58-59 (“Morris”).
75The goal in every case is a fair, fit and principled sanction, and proportionality is the organizing principle in reaching this goal. All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Individualization is central to the proportionality assessment. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case. See R. v. Parranto, 2021 SCC 46 at paras. 10, 12 and R. v. Ipeelee, 2012 SCC 13 at para. 37.
76The objectives of individual deterrence and rehabilitation are paramount with respect to the sentencing of first offenders, particularly youthful first offenders. The principle of restraint serves to minimize a youthful first offender’s sentence in that it requires a sentencing judge to consider all sanctions apart from incarceration and, where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender. Further, a first penitentiary sentence should be as short as possible. See R. v. Priest, 1996 CanLII 1381 (Ont. C.A.), R. v. Desir, 2021 ONCA 486 at paras. 31, 41 (Desir”), R. v. Batisse, 2009 ONCA 114 at paras. 32-33 (“Batisse”), and R. v. Borde, 2003 CanLII 4187 at para. 36 (C.A.). The principle also requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence, recognizing that in very serious cases and cases involving violence – including sexual assault – rehabilitation alone is not the determinative factor and general deterrence and denunciation must also be considered. See Desir at para. 41, Batisse at paras. 33-34, and R. v. Thurairajah, 2008 ONCA 91 at para. 41.
77On sentencing, the rules of evidence are relaxed to facilitate the production of any information that could help the sentencing judge arrive at a fit sentence. Information that sheds light on the offender’s background, character, and circumstances, or helps explain why the offender committed the offence, is relevant on sentencing and potentially admissible. The sentencing judge can rely on hearsay information if the judge concludes that it is credible and trustworthy. See Morris at paras. 133-135 and sections 723 and 726.1 of the Criminal Code.
b. Sexual assault
78All sexual assaults are inherently violent and serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity and dignity are harmfully impacted while being treated as nothing more than an object. Victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. See A.J.K. at para. 74 and S.W. at para. 93. As a result, denunciation and deterrence are primary considerations on sentencing in cases of sexual assault. See R. v. R.S., 2023 ONCA 608 at para. 39 (“R.S.”) and A.J.K. at para. 83. Sentencing decisions in sexual assault cases must denounce this conduct, deter likeminded individuals from committing such offences, and reflect the harm that sexual offences have done to the complainant and the community at large. See R. v. Silveira, 2024 ONSC 757 at para. 26.
79Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. The suggested sentencing range in the case law is three to five years. See A.J.K. at para. 77 and R.S. at paras. 4, 22. “Forced” penetration refers to the lack of consent and does not require the presence of additional violence beyond the violence inherent in non-consensual intercourse. See S.W. at paras. 38-39.
80While sentencing ranges reflect the principles and objectives of sentencing and are used to ensure the parity of sentences, they are primarily guidelines, not straightjackets. Sentencing judges must still exercise their discretion in each case. See A.J.K. at para. 71 and R. v. Lacasse, 2015 SCC 64 at paras. 57-60.
c. Domestic violence
81The objectives of denunciation and deterrence gain added significance and require heightened attention to the moral blameworthiness of the offender in the context of domestic violence. The sentence must reflect the individual harm to the victim and the court’s response to the serious effects of domestic violence. See R. v. Cunningham, 2023 ONCA 36 at para. 26.
d. Conditional sentences
82A conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders: see R. v. Proulx, 2000 SCC 5 at para. 21 (“Proulx”). Conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Thus, conditions like house arrest should be the norm, not the exception. The offender should be confined to their home except when working, attending school, fulfilling other conditions of their sentence or pursuant to other exceptions such as medical emergencies. See Proulx at paras. 36, 103.
83There are four criteria that a court must consider before deciding to impose a conditional sentence (see Proulx at para. 46 and section 742.1 of the Criminal Code):
a. The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment and that is not listed in subsections 742.1(c) or (d).
b. The court must impose a term of imprisonment of less than two years.
c. The safety of the community would not be endangered by the offender serving the sentence in the community.
d. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
84No offences are excluded from the conditional sentencing regime, except those with a minimum term of imprisonment and the offences that are listed in section 742.1 of the Criminal Code: see Proulx at para. 127(3). Serious consideration should be given to the imposition of a conditional sentence in all cases where the first three prerequisites listed above are satisfied: see Proulx at paras. 90 and 127(7).
85The prerequisite that the court impose a term of imprisonment of less than two years only requires the sentencing judge to make a preliminary determination rejecting a penitentiary term and probationary measures as inappropriate. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years and being satisfied that the offender would not endanger the community, the judge should then consider whether it is appropriate for the offender to serve their sentence in the community. A conditional sentence need not be of equivalent duration to the sentence of incarceration that would have otherwise been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. See Proulx at paras. 127(4) and (5).
e. Collateral consequences, including collateral immigration consequences and family separation
86Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to examine collateral consequences in order to craft a proportionate sentence that takes into account all the relevant circumstances related to the offence and the offender. A collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. Although collateral consequences are not necessarily aggravating or mitigating factors under section 718.2 of the Criminal Code, they speak to the personal circumstances of the offender, and they are relevant to the application of the sentencing principles of individualization and parity. The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of their circumstances. However, the fundamental principle of proportionality must prevail in every case, and collateral consequences cannot be used to reduce a sentence to a point where it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. See R. v. Suter, 2018 SCC 34 at paras. 46-48, 56.
87Like other collateral consequences, collateral immigration consequences are not, strictly speaking, aggravating or mitigating factors: see R. v. Pham, 2013 SCC 15 at para. 11 (“Pham”). However, they may be taken into account in sentencing as personal circumstances of the offender. Their relevance flows from the application of the principles of individualization and parity, and may also flow from the application of the sentencing objective of assisting in rehabilitating offenders. See Pham at para. 11. Thus, collateral immigration consequences may be relevant in tailoring a sentence, but their significance depends on, and has to be determined in accordance with, the facts of the particular case. See Pham at para. 13. Collateral immigration consequences are only one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances: see Pham at para. 20.
88While a sentencing judge may exercise their discretion to take collateral immigration consequences into account, the sentence ultimately imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Inappropriate and artificial sentences cannot be imposed in order to avoid collateral immigration consequences. See Pham at paras. 14-16 and R. v. R.L.S., 2020 ONCA 338 at para. 10.
89It is also open to a sentencing judge to consider the collateral family consequences of family separation on the offender and on the children themselves. However, the sentence imposed must always remain proportionate to the gravity of the offence and the responsibility of the offender, and this factor cannot be allowed to overwhelm all other considerations. See R. v. L.C., 2022 ONCA 863 at para. 24 and R. v. Dent, 2023 ONCA 460 at paras. 124-126.
90Sentencing judges must preserve the family as much as possible while being careful not to let family separation consequences overwhelm the other principles of sentencing. Thus, if incarceration is necessary, sentencing judges must give serious and sufficient consideration to family separation consequences in determining the length of the prison term. The same careful consideration is also needed when determining whether to incarcerate the accused. Depending on the facts, family separation consequences may justify a sentence adjustment – even a significant one – or a departure from the range. A proportionate sentence cannot be determined without considering family separation consequences. See R. v. Habib, 2024 ONCA 830 at paras. 44, 45 and 47 (“Habib”), and R. v. Spencer, 2004 CanLII 5550 at para. 47 (Ont. C.A.).
2. Aggravating factors
91There are some aggravating factors in this case:
a. M.C. abused a former intimate partner. See section 718.2(a)(ii) of the Criminal Code.
b. The offences took place in S.M.’s home, a place where she should have been feeling safe and secure. See R.S. at para. 51 and R. v. Touray, 2024 ONSC 3748 at para. 20.
c. S.M. was pregnant at the time of the sexual assault.
d. M.C. did not wear a condom and had unprotected vaginal intercourse with S.M. See R. v. T.W., 2019 ONSC 5596 at para. 40.
e. M.C. continued the sexual assault despite S.M.’s repeated requests that he stop.
f. Pursuant to section 718.2(a)(iii.1) of the Criminal Code, evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, constitutes an aggravating circumstance. S.M. provided a victim impact statement in this case in which she describes how M.C.’s actions have impacted her life. I accept that the offence has had a significant impact on S.M.
3. Mitigating factors and collateral consequences
92I now turn to the mitigating circumstances relevant to sentence:
a. M.C. is a youthful first offender. He does not have a criminal record. He was only 19 and 20 years old at the time the offences were committed.
b. M.C. has a history of early life instability and exposure to adverse experiences, including the death of his father at a young age, the death of his brother due to gang-related violence during his youth, exposure to abuse in a caregiving environment, and involvement with child protection services resulting in placement in foster care during adolescence. Exposure to traumatic events may fundamentally change a person’s worldview and, therefore, their vulnerability, maturity and capacity for moral judgment. See R. v. I.M., 2025 SCC 23at para. 156.
c. M.C. has had stable and continuous employment in the tree cutting industry for approximately four years and he has positive workplace relationships.
d. While M.C. is no longer in contact with his family, he has a good support network and significant help in the community.
e. M.C. has been giving monthly payments of approximately $700 to S.M. for their child. Providing for family members is a mitigating factor that shows good character and can increase rehabilitative prospects. See Habib at para. 47.
93While collateral family consequences are a factor in this case, I only give limited weight to this factor. This is because M.C.’s child was born approximately six months after his arrest and M.C. has only had limited contacts with his child since his birth. Given the limited interactions that M.C. has had with his child, this is not really a case of “family separation”.
94There is evidence before me that M.C. has an intellectual disability. However, the relevance of this information to the determination of an appropriate sentence in this case is very limited because, as pointed out by the Crown, there is no evidence of a connection between, on the one hand, M.C.’s intellectual disability and, on the other hand, his criminal conduct in this case and/or his moral blameworthiness. I have considered the defence’s submission that M.C.’s intellectual disability may increase the severity of incarceration for him and jeopardize his rehabilitation, but the basis for this submission is unclear. Among other things, there was no evidence before the Court regarding the services that may or may not be available to assist M.C. while incarcerated.
95M.C. has been on bail for a long time, i.e., more than four years. However, I find that this factor does not have a significant impact on the determination of an appropriate sentence in this case. There is no evidence that M.C.’s bail conditions were stringent, and they do not appear to have had an impact on his ability to carry on normal relationships, employment and activities. There is no evidence before this Court regarding the concrete impact of M.C.’s specific bail conditions on him. See R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 at paras. 33, 37 (C.A.), and R. v. Joseph, 2020 ONCA 733 at paras. 108, 114.
96Remorse is not a mitigating factor in this case as remorse requires an acceptance of guilt or willingness to take responsibility for one’s actions, which M.C. has not done. However, M.C.’s lack of remorse and denial of guilt do not constitute an aggravating factor. An accused person is entitled to maintain their innocence. See R. v. Bradley, 2008 ONCA 179 at para. 16 and Morris at paras. 157, 159. However, M.C.’s refusal to take responsibility for his criminal conduct does not augur well for his rehabilitative potential. See Morris at para. 159.
97I now turn to the issue of collateral immigration consequences. I note that some important collateral immigration consequences cannot be avoided in this case because a jury has found M.C. guilty of sexual assault and choking. The letter from the Refugee Law Office identifies other collateral immigration consequences that relate to an application for a PRRA, but also states that general acceptance of PRRAs is very low. In my view, the collateral consequences related to an application for a PPRA cannot be avoided in this case because a sentence of less than two years of imprisonment would not be appropriate, as discussed below. Such a sentence would not be proportionate to the gravity of the offences and the degree of responsibility of M.C., and would not adequately give effect to the objectives of deterrence and denunciation, which are primary considerations in this case. As stated above, inappropriate and artificial sentences cannot be imposed in order to avoid collateral immigration consequences. Nevertheless, I have considered the issue of collateral immigration consequences and the fact that such consequences will have the effect of “amplifying” the effects of the sentence on M.C. However, as the Supreme Court of Canada stated in Pham, the risk of deportation must not lead to a separate or special range of sentencing options: see Pham at para. 16.
4. The appropriate sentence
98In my view, a conditional sentence is not appropriate in this case because a term of imprisonment of less than two years would be inconsistent with the principles of sentencing applicable in this case. Conditional sentences are rarely proportionate in cases of sexual assault involving penetration because, as stated by the Court of Appeal in A.J.K., the sentencing objectives of deterrence and denunciation will normally require penitentiary sentences in the three to five-year range. See S.W. at paras. 37 and 46, and R. v. C.P., 2024 ONCA 783 at paras. 38-39. Given the fact that M.C. has been convicted of two different offences committed against an intimate partner at different times, and in light of the seriousness of the offences and the aggravating factors in this case, a term of imprisonment of less than two years would not sufficiently meet the overarching objectives of denunciation and deterrence.
99While the collateral immigration consequences could potentially be significant in this case, imposing a term of imprisonment of less than two years based on this consideration would be to place unreasonable emphasis on this one factor and allow it to overwhelm all other considerations.
100I agree with the Crown that the cases relied upon by the defence in support of the position that a conditional sentence would be appropriate in this case can all be distinguished, one way or another, based on the circumstances of the case and/or the circumstances of the offender. I note the following, among other things:
a. Some cases involved sexual assaults without penetration.
b. Some cases predate the decision of the Court of Appeal in A.J.K.
c. One case involved a guilty plea.
d. One case proceeded by way of summary conviction.1
101Denunciation and deterrence are primary considerations on sentencing in cases of sexual assault. I must also consider the fact that M.C. is a youthful first offender. However, the circumstances of the sexual assault in this case and the circumstances of the accused do not justify a departure from the sentencing range of three to five years. There are no highly mitigating factors present, and there are serious aggravating factors. See S.W. at paras. 18, 46.
102In light of the circumstances of this case, M.C.’s circumstances, the mitigating and aggravating factors that have been identified, the cases referred to by the parties, and the various objectives and principles of sentencing discussed above (including the principle of restraint), I conclude that a sentence of three years’ imprisonment for the offence of sexual assault committed by M.C. is a fit sentence that is proportionate to the gravity of the offence and the degree of responsibility of M.C.
103I agree with the Crown that the sentence for choking should be consecutive to, and not concurrent with, the sentence for sexual assault. The two offences do not arise out of the same event or series of events, and they are not “so closely linked to each other as to constitute a single criminal adventure”. See subsection 718.3(4)(b)(i) of the Criminal Code and R. v. Friesen, 2020 SCC 9 at para. 155.
104Denunciation and deterrence are also the sentencing principles that exert the greatest influence in determining a sentence in cases of violence against an intimate partner. The sentence imposed in such cases must also promote a sense of responsibility among violent partners and an acknowledgement of the harm done not only to their immediate victims, but equally to the community at large. See R. v. Ibrahim, 2011 ONCA 611 at para. 15.
105The defence did not make any specific submissions with respect to the sentence for this offence. The Crown submitted that a sentence of six months would be appropriate. I accept the Crown’s submission.
5. Conclusion
106I find that a global sentence of imprisonment of three and a half years for all convictions is a fit sentence that is proportionate to the gravity of the offences and the degree of responsibility of M.C. M.C. is entitled to a credit of 3 days for pre-sentence custody.
107In my view, the ancillary orders requested by the Crown are standard and uncontroversial. They were not opposed by the defence. They are granted.2
IV. DISPOSITION
108For the reasons set out above, M.C. is sentenced as follows:
a. Count 4 – Sexual assault: Three years of imprisonment, minus 3 days, for a total of two years and 362 days of imprisonment.
b. Count 1 – Choking: Six months of imprisonment, consecutive.
109In addition, I make the following ancillary orders:
a. Pursuant to subsection 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from M.C.
b. Pursuant to subsections 109(1) and 109(2) of the Criminal Code, I make an order prohibiting M.C. from possessing: (i) any firearm (other than a prohibited firearm or restricted firearm), cross-bow, restricted weapon, firearm part, ammunition, and explosive substance for a period of 10 years; and (ii) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
c. Pursuant to subsections 490.012(3) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 requiring M.C. to comply with the Sex Offender Information Registration Act for a period of 20 years. In my view, this order would not have a disproportionate impact on M.C.’s privacy and liberty interests, and I am not satisfied that the factors in subsections 490.012(3)(a) and (b) have been established.
d. Pursuant to subsection 743.21(1) of the Criminal Code, I make an order prohibiting M.C. from communicating, directly or indirectly, with S.M. during the custodial period of the sentence, except pursuant to a family court order.
e. Pursuant to subsections 737(1) and 737(2)(b)(ii) of the Criminal Code, I order M.C. to pay a victim surcharge in the amount of $400.00 within 18 months after his release.
Vermette J.
Released: July 14, 2026
Footnotes
- As a result, the maximum available sentence in that case was 18 months of incarceration: see section 271 of the Criminal Code.
- However, I have limited the weapons prohibition order to ten years.